FairShare and AE Service Terms of Use
FairShare is powered by Appreciation Engine (AE). Please agree to the Service Terms of Use below.
AE Service Terms of Use
1. Welcome to the Appreciation Engine
MusicHype Inc. (“MusicHype”, “we”, “our” or “us”) has created these Terms of Use (these “Terms”) so that you can enjoy the benefits of our AE Service (as defined below) while protecting our rights. In these Terms, you are referred to as a “customer” or “you”. If you are agreeing to these terms on behalf of your company, then “customer” or “you” means your company and you represent that you are authorized to bind, and are binding, your company to these Terms.
These Terms will evolve along with the AE Service, and we will provide notice of amendments and modifications as described in Article 17 of these Terms.
Please read these Terms carefully. These Terms form a legal agreement between you and MusicHype that governs your use of the AE Service. You cannot make any changes, additions or deletions, and MusicHype may refuse you access to the AE Service for noncompliance with any part of these Terms. To use the AE Service, you must be of legal age to form a binding contract and not a person barred from receiving the AE Service under the laws of the United States or any other applicable jurisdiction. MusicHype may grant or withhold approval to use the AE Service in its sole discretion.
By clicking on “I agree” (or a similar box or button) or using the AE Service, you agree to be bound by these Terms. You may not use the AE Service if you do not agree to these Terms, as may be updated or amended by MusicHype.
2. The AE Service
These Terms govern your access to and use of our webpages and other documentation (“Documentation”), APIs, the AE dashboard, and SDKs (collectively, the “AE Service”) to implement social login and see deep customer analytics. To use the AE Service, you must process any forms and application requirements with the relevant social media sites to request information from your users. You must obtain consent from your users for any information you wish them to provide for collection and processing by the AE Service.
3. Registration
To access the AE Service, you must follow our registration process. We may approve or deny access to the AE Service in our sole discretion.
4. Use Rights
Subject to these Terms, you may use the AE Service solely to enable your products and services to access or interface with the AE Service. Your use shall be limited by these Terms, our Documentation and your license plan terms which you select and can view from within your account (as our Documentation and your license plan terms may be modified from time to time, and all of which are incorporated into these Terms). All of your rights are non-assignable, non-transferrable, and non-sublicenseable. In the event of a conflict between these Terms and our Documentation or license plan terms, the provisions of these Terms shall govern.
MusicHype may control and monitor your account for compliance purposes, and MusicHype reserves the right to enforce the Terms with or without notice to you. MusicHype has the right, but not the obligation, to investigate any reported or apparent violation of the Terms, and to take any action that MusicHype in its sole discretion deems appropriate.
5. Fees
Your AE Service fee will be issued each month after you create your AE account, unless you sign up using our trial plan, in which case no fee is due for the first 30 calendar days after you sign up. All payments will include the AE Service fee for the upcoming month of use. MusicHype will continue invoicing you monthly until these Terms are terminated in accordance with Article 16 of these Terms. You shall pay all fee amounts in US dollars.
We will send all invoices by email to you, or to the billing contact you provide, and charge your credit card automatically. If we cannot process your credit card, we will notify you by email. If you do not pay our invoice within seven calendar days after the invoice date (including without limitation if we cannot process your credit card), these Terms will be terminated in accordance with Article 16 of these Terms. You are responsible for payment of all taxes, duties fees, or other levies or charges which may be imposed on or in respect of the AE Service, in addition to the AE Service fee, except for taxes based on our net income.
6. Modifications
In our sole discretion, we may add, remove or modify any features of the AE Service, impose additional eligibility requirements or restrictions for access to the AE Service, or discontinue the AE Service. We may not provide you with notice of the changes. If you do not wish to use the AE Service as modified, your only recourse is to immediately discontinue use of the AE Service and close your AE Service account.
7. Branding and Publicity
(a) Brand Features
“AE Brand Features” means the trade names, trademarks, service names, service marks, logos, domain names, and other distinctive brand features. These Terms do not grant you any right, title, or interest in or to the AE Brand Features, and you may not use the AE Brand Features without MusicHype’s prior express written consent. Any permitted use by you of the AE Brand Features (including without limitation any goodwill associated with such use) shall inure to the benefit of MusicHype.
(b) Publicity
You may not issue any press release via traditional or online media referring to MusicHype or the AE Service without MusicHype’s prior review of such materials and subsequent written consent. You must conduct all such activities truthfully and without implying that your application is created, sponsored, or endorsed by MusicHype (or otherwise embellishing your relationship with MusicHype). You may not make any legal representations, guarantees or warranties on behalf of MusicHype or with respect to MusicHype or the AE Service. If you become aware that any public-facing articles are being developed by independent publications or authors connecting your use of the AE Service or our relationship, then you agree to immediately inform MusicHype at [email protected].
You agree that MusicHype may publicly refer to you, orally or in writing, as a customer of the AE Service. We may also publish your trade names, trademarks, service names, service marks, logos, domain names, and other distinctive brand features on our website, in press releases, and in promotional materials without your prior consent.
8. Your Responsibilities
(a) User Relationships
You must provide your own legally binding terms of use and privacy policy (collectively “Your Terms”), made publicly available in accordance with all Laws (as defined below), to all of your third-party users who you collect information from or about through the AE Services (“Your Users”). You agree to provide current copies of Your Terms to MusicHype and to timely notify MusicHype in writing of, and timely provide to MusicHype, any changes to Your Terms. You shall collect, process, transmit, maintain and use all data, content or information of Your Users, including without limitation data processed by the AE Service (collectively, “User Data”) in accordance with Your Terms and all Laws . Your Terms must disclose collection and processing of User Data as described in the AE Services Privacy Policy available at http://get.theappreciationengine.com/privacy-policy/ (the “AE Privacy Policy”) and must describe (i) the categories of information collected about Your Users through the AE Services, (ii) the categories of information automatically collected by the AE Services, (iii) the permissions required by the AE Services when Your Users connect their social media accounts with the AE Services, (iv) the choices Your Users may exercise regarding such social media account permissions and the information collected by the AE Services, (v) that MusicHype may process User Data on your behalf for purposes of filtering, aggregation, segmentation and reporting, (vi) that MusicHype may create aggregate reports about Your Users which it may use and disclose for its own purposes. Without limiting the foregoing, you represent and warrant that (a) Your Terms shall contain clear and legally adequate disclosures about the nature of your service’s connection to the AE Services and the User Data you are collecting and how you and MusicHype may use it and (b) you shall ensure that all necessary consents have been obtained from Your Users for any collection and processing of User Data under this Agreement.
You also acknowledge and agree that we may process User Data as described in the AE Privacy Policy and that we may engage third-party sub-processors in connection with the provision of the AE Service.
You understand and agree that we have no direct relationship with your users whose User Data the AE Service processes. You agree to field all requests from your users, and promptly transmit any relevant requests to us, including without limitation requests (i) that you or we do not contact by of your users, (ii) for access to personal user data and (iii) to correct, amend, or delete inaccurate, personal user data. Where requested to do so by MusicHype, you must also assist MusicHype with any requests by the individual to access or update their User Data in the AE Service.
For our social login service, you agree that once we have successfully facilitated the transmission of User Data to your database that we do not host, it is your responsibility to guard User Data against unauthorized access or transmission.
You understand and agree that MusicHype may access, preserve, and disclose your and User Data and account details if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal process or to protect the rights, property, or safety of MusicHype, its affiliates or partners, its users, or the general public.
(b) Be a Good Person
You shall not and shall not knowingly permit others (including without limitation any of your users):
Try to exceed or circumvent limitations on calls and use;
Copy, reformat, reverse-engineer, disassemble, decompile, or decipher the AE Service or apply any procedure or process to, the AE Service, our access credentials, or our website or content, for any purpose;
Download, scrape, post or transmit (in any form or means) any part of the AE Service or our website;
Using our Confidential Information (as defined below), create an API or similar function that functions substantially the same as any of our APIs;
Submit or allow to be submitted to the AE Service or our website any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature;
Defame, abuse, harass, stalk or threaten others, promote unlawful activities or send disruptive or offensive messages or advertisements;
Access the AE Service for competitive purposes (including without limitation to connect to a competitive product or to create your own competitive product) or publicly disseminate performance information or analysis (including without limitation uptime, response time and/or benchmarks) relating to the AE Service;
Use the AE Service, except as set forth in these Terms;
Modify, adapt, alter, translate, or customize the AE Service in any way or prepare any derivative work based upon the AE Service;
Transfer, sublicense, distribute, lend, sell, lease, rent, assign or otherwise transfer or make available the AE Service or any portion of the AE Service;
Willfully tamper with the security of the AE Service or tamper with other customers’ accounts;
Attempt to access data on the AE Service not belonging to or intended for your use;
Attempt to probe, scan or test the AE Service or to breach the security or authentication measures of the AE Service without proper authorization;
Willfully render any part of the AE Service unusable.
(c) Personal Information You Provide
Through your use of the AE Service, we may also collect information, either directly or from you, about someone else if you provide it. If you provide us with personal information about someone else, or authorize us to collect personal information directly, you must ensure that you are authorized to disclose that information to us, or that we may collect that information directly, and that, without us taking any further steps required by applicable laws or regulations, we may collect, use and disclose such information.
(d) Your Representations; Indemnification
You are solely responsible for your use of the AE Service, your applications and any data or content that you use with, or authorize us to collect and add to, the AE Service. You represent and warrant that: (i) you have full power and authority to enter into and perform these Terms; (ii) your use and your users’ use of the AE Service and your applications do not and will not violate, and will process all third-party data in accordance with, any third-party rights (including without limitation intellectual property rights and rights of privacy or publicity) or any laws, rules, regulations or orders, including without limitation those relating to data privacy, data transfer, international communications and the export of technical or personal data (collectively, “Laws”); (iii) all information you provide to MusicHype is and will be true, accurate, and complete; (iv) you will not interfere with MusicHype’s business practices, the way in which MusicHype offers the AE Service or any third party products or networks used with the AE Service; and (v) you shall take sole responsibility for the accuracy, quality, and legality of all personal information and the means by which you acquire personal information or authorize the AE Service to collect personal information. You will indemnify, defend and hold harmless MusicHype and its affiliates and their respective directors, officers, stockholders, employees, agents, contractors, end users and licensees from and against any claims, losses, costs, expenses (including without limitation attorneys’ fees), damages or liabilities based on or arising from (1) your use of the AE Service and your users’ interaction with the AE Service, (2) your applications and your relationships or interactions with any users or third party distributors of your applications, or (3) your breach or alleged breach of these Terms. MusicHype may at its own expense participate in the defense and settlement of any claim with MusicHype’s own counsel, and you may not settle a claim involving and affecting MusicHype without MusicHype’s prior express written consent.
10. Disclaimer of Warranties
YOUR USE OF, OR INABILITY TO USE, THE AE SERVICE IS AT YOUR SOLE RISK. THE AE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MUSICHYPE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE AE SERVICE OR ANY OTHER MUSICHYPE PROPERTY, REGARDLESS OF ANY COURSE OF DEALING, PROMOTIONAL LITERATURE OR OTHER ACTIONS WHICH MAY GIVE AN IMPRESSION OF CREATING A WARRANTY OR REPRESENTATION. MUSICHYPE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RESPECTING THE FUNCTIONAL CHARACTERISTICS OR PERFORMANCE OF THE AE SERVICE OR ANY OTHER MUSICHYPE PROPERTY, OF THE PROFITABILITY OR OTHER BENEFITS TO BE OBTAINED BY YOU FROM THE USE OF THE AE SERVICE OR ANY OTHER MUSICHYPE PROPERTY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR FROM CUSTOM, COURSE OF PERFORMANCE, A COURSE OF DEALING OR USAGE IN TRADE OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.
11. Limitation of Liabilities
NOTWITHSTANDING ANY PROVISION OF THESE TERMS TO THE CONTRARY:
(A) MUSICHYPE SHALL NOT BE LIABLE TO YOU FOR DAMAGES FOR ANY CAUSE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, RELATED TO OR ARISING OUT OF THESE TERMS, IN AN AGGREGATE AMOUNT THAT EXCEEDS THE TOTAL FEES AND CHARGES PAID TO MUSICHYPE BY YOU UNDER THESE TERMS FOR THE PRIOR CALENDAR QUARTER;
(B) MUSICHYPE SHALL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS OR SERVICE, LOSS OF BUSINESS, DELAYS, LOSS OF DATA OR PROGRAMS, LOSS OF USE OF COMPUTER HARDWARE, OR LOSS OF GOODWILL, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, MUSICHYPE SHALL NOT BE LIABLE IN RESPECT OF ANY DECISIONS MADE BY YOU IN CONNECTION WITH ANY SYSTEM OR PRODUCTS; AND
(C) BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF MUSICHYPE SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. Ownership and Use Restrictions
(a) MusicHype Ownership
MusicHype owns and shall continue to own all right, title and interest in and to: (i) the AE Service, the AE Brand Features, or other products and services, and all related technology, websites and content, and any modifications or derivative works of the foregoing, (ii) MusicHype Confidential Information (as defined below), (iii) any intellectual property created by MusicHype, including without limitation in providing the AE Service, (iv) any aggregated and anonymized data created by the AE Service using User Data as described in the AE Privacy Policy (the “Aggregate Data”) and (v) any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks, designs or design marks or proprietary inventions, designs and information included within any of the items described in clauses (i) through (iv) of this paragraph. All suggestions, solutions, improvements, corrections, and other contributions provided by you regarding the AE Service or any of the other items in this paragraph shall become the sole property of MusicHype, and you hereby assign any such rights to MusicHype. You agree that MusicHype may create, use, and disclose the Aggregate Data for any purpose, including without limitation to present or sell analytics and demographics based on the data to third parties, while these Terms are in effect and after termination of these Terms for any reason. Except for the limited use right expressly granted to you under these Terms, MusicHype does not grant you any right, title, or interest in any items or intellectual property owned by MusicHype, including without limitation anything in this paragraph.
(b) Your Ownership
You own and shall continue to own all right, title and interest in and to: (i) your confidential information, (ii) your User Data, subject to any third party rights and subject to MusicHype’s ownership of the Aggregate Data, and (iii) any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks, designs or design marks or proprietary inventions, designs and information included within any of the items described in clauses (i) and (ii) of this paragraph.
(c) Other Intellectual Property
You and MusicHype agree that any intellectual property created by either party outside of these Terms shall be owned exclusively by such creating party and no license with respect to such intellectual property shall be granted to the other party under these Terms. Without limiting the foregoing, such creating party may use such intellectual property within such creating party’s other intellectual property or otherwise.
13. Third-Party and Open Source Components; Third Party Services
You acknowledge that the AE Service contains certain third-party and open source components, and that such components are licensed separately under a variety of third-party and open source licenses. You agree that no such third-party licenses shall increase the term of or otherwise affect or alter the license granted under these Terms or change any of MusicHype’s rights in and to the AE Service with regard to you.
The AE Service may include materials from third parties. In addition, MusicHype may provide links to certain third-party websites and technology solutions. You acknowledge and agree that MusicHype is not responsible for examining or evaluating the content or accuracy of any such third-party materials, websites or solutions. MusicHype does not control, and is not responsible for, such information provided by third parties. MusicHype does not warrant or endorse and does not assume, and you agree that MusicHype shall not have, any liability or responsibility for any third-party materials, websites or solutions, or for any other materials, services or solutions of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of anyone, and that MusicHype is not in any way responsible for any such use by you.
14. Additional Products; Patent Claims; Third Party Services
You understand and acknowledge that MusicHype may be independently creating (or may receive from third parties) features, applications, content, or other products or services that may be similar to or competitive with your application, and nothing in these Terms will be construed as restricting or preventing MusicHype from doing so. In addition, to allow others to benefit from the AE Service, you agree not to assert (or assist or encourage anyone in asserting) any patent claims against MusicHype (or its users, customers partners or developers, or MusicHype’s or their respective successors, assigns) where such patent claim relates to the integration, combination or interface of any applications, products or services with the AE Service or our other products or services.
15. Confidential Information
(a) MusicHype Confidential Information.
MusicHype may provide certain information to you that is confidential or proprietary (“MusicHype Confidential Information”). MusicHype Confidential Information consists of (i) your access keys or logins for the AE Service, any non-public elements of the AE Service or any pre-release information about the AE Service and (ii) anything identified or marked as “Confidential” or “Proprietary” or that you should reasonably understand to be confidential or proprietary under the circumstances. You may use MusicHype Confidential Information only for the purposes of these Terms. You may not disclose any MusicHype Confidential Information to third parties, other than your employees, agents and advisors with a need to know and for whom you agree to remain responsible under these Terms.
(b) Your Confidential Information.
Except for the information you give to us in connection with your sign-up process for the AE Service, which we treat in accordance with our AE Privacy Policy, you should not disclose any information to MusicHype that you consider to be confidential. To avoid any potential confusion, you agree that any unsolicited information you provide to MusicHype in relation to the AE Service will be non-confidential and, if it relates to the AE Service or other MusicHype property, is subject to the provisions of Section 12(a) of these Terms regarding suggestions, solutions, improvements, corrections, and other contributions.
16. Term and Termination
These Terms remain in effect until terminated. You may terminate these Terms at any time by ceasing all use of the AE Service and cancelling your account within the AE Service. Unless a shorter period is otherwise set forth in these Terms, we may terminate these Terms for any reason or any reason upon ten calendar days’ notice to you. In addition, we may suspend or terminate these Terms (or your use of all or any of the AE Service) immediately if we believe you have violated these Terms, if we believe the use of your application with the AE Service is not in our best interests, if we cease to offer the AE Service or as required by Laws.
Upon termination of these Terms:
all rights and licenses granted to you shall terminate immediately and you must stop using the AE Services and all other property of MusicHype;
your account will be disabled and you may not be granted access to the AE Service, your account or any information contained in your account.
we shall not be liable to you solely based on any termination of these Terms;
you shall permanently delete all MusicHype Confidential Information and any other data which you stored pursuant to your use of the AE Service (other than User Data you have received and are using in accordance with Section 8(a)) and confirm such destruction to MusicHype in writing;
MusicHype may continue to use the User Data as described in these Terms; and
Articles 5 and 8 through 18 shall survive such termination.
17. Modification and Amendments to Terms
We reserve the rights to modify or amend the AE Privacy Policy and these Terms, or any additional terms that apply to the AE Service, and to impose new rules and policies regarding the AE Service, in our sole discretion, at any time and for any reason, for example, to reflect changes to the Laws, changes to the AE Service or for other reasons. We will post notice of modifications and amendments to these Terms or any such additional terms. Changes are effective thirty calendar days after they are posted. However, changes specific to new functionality for the AE Service, changes made for legal reasons, and any changes to the AE Service or our other property or referenced policies will be effective immediately. You must accept the modified Terms to continue using the AE Service, and you agree that your continued use of the AE Service after the changes become effective constitutes acceptance of the modified terms. Your sole remedy with respect to any dissatisfaction with any modifications or amendments, or any policies or practices of MusicHype in providing the AE Service, shall be to discontinue your use of the AE Service and delete your account, which shall not relieve you from your obligations to pay MusicHype any fees due, and to abide by the Terms, as of the time you cease to use the AE Service. Except as set forth in this paragraph, all amendments must be in writing and signed by both parties.
18. General
(a) Entire Agreement; Waiver; Severability; Interpretation; Assignment; Remedies.
These Terms constitute the entire agreement between MusicHype and you with respect to the subject matter in these Terms, and merge and supersede any and all prior proposals, understandings, representations and other communications between you and us, whether oral or written. Except for third parties related to MusicHype that may be indemnified under these Terms, these Terms do not create any third party beneficiary rights. If you do not comply with these Terms, and MusicHype does not take action right away, this does not mean that MusicHype is giving up any rights that MusicHype may have (including without limitation taking action in the future). If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect. In these Terms, “including” (and similar terms) are to be construed without limitation, and headings are for convenience only. You may not assign these Terms, in whole or in part, without MusicHype’s prior written consent, and any assignment without such consent is null and void. MusicHype may assign, transfer or delegate these Terms in its sole discretion. You acknowledge that your breach of these Terms may cause irreparable harm to MusicHype, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which MusicHype may be legally entitled, MusicHype shall have the right to seek immediate injunctive relief in the event of a breach of these Terms by you or any of your related companies, officers, employees, consultants, or other agents.
(b) Governing Law and Venue; Arbitration and Waiver of Jury Trial.
Regardless of your place of business, the laws of California, U.S.A., excluding California’s choice of law rules, apply to any disputes arising out of or related to these Terms, the AE Service or any other MusicHype property. All claims arising out of or relating to these Terms, the AE Service or any other MusicHype property shall be resolved by binding arbitration conducted by the American Arbitration Association (AAA) in Los Angeles County, California, rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including without limitation injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. We also both agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property rights or our Confidential Information. You agree that all claims will be resolved exclusively in Los Angeles County, California, and you consent to personal jurisdiction there, and waive any claim of forum non-conveniens.
(c) Statute of Limitations.
You agree that regardless of any statute or law to the contrary, you must file any claim or cause of action arising out of or related to use of the AE Service or these Terms within one year after such claim or cause of action arose or be forever barred.
(d) Force Majeure.
If the performance of MusicHype under these Terms is prevented, hindered, or otherwise made impractical because of flood, strike, war, acts of government, or any other casualty or cause beyond the control of MusicHype, then MusicHype shall be excused from its performance to the extent and as long as it is prevented, hindered, or delayed by any of these events.
(e) Type of Relationship Created.
No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms or your use of the AE Service.
Annex A – General Data Protection Regulation Data Processing Addendum
This General Data Protection Regulation Data Processing Addendum (“DPA”), forms part of the Terms of Use between MusicHype, Inc. (“MusicHype”) and you (“Customer”). The parties have entered into the Terms of Use (“Agreement”) under which MusicHype will process certain personal data provided or made available by Customer in the course of providing the AE Service to Customer. The parties intend this DPA to be an extension of the Agreement that will outline certain requirements for the processing of such personal data. This DPA applies exclusively to personal data provided or made available by Customer in the EEA to MusicHype in the US.
1. Definitions.
a. "Data Protection Legislation" means all applicable laws relating to privacy and the processing of personal data that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by the supervisory authorities. Data Protection Legislation includes, but is not limited to, European Directives 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation (Regulation (EU) 2016/279)).
b. "Good Industry Practice" means, in relation to any activity and under any circumstance, exercising the same skill, expertise and judgement and using facilities and resources of a similar quality as would be expected from a person who:(a) is skilled and experienced in providing the services in question, seeking in good faith to comply with his contractual obligations and seeking to avoid liability arising under any duty of care that might reasonably apply;(b) takes all proper and reasonable care and is diligent in performing his obligations; and (c) complies with the Data Protection Legislation.
c. "data controller", "data processor", “subprocessor”, "data subject", "personal data", "processing", and "appropriate technical and organisational measures" shall be interpreted in accordance with Directive 95/46/EC, or other applicable Data Protection Legislation, in the relevant jurisdiction.
d. "Customer Data" means any personal data that MusicHype processes on behalf of Customer as a data processor in the course of providing the AE Service, as more particularly described in this DPA.
2. Scope. The parties agree that, as between the parties, Customer is a data controller and that MusicHype is a data processor in relation to personal data that MusicHype processes on behalf of Customer in the course of providing the AE Service under the Agreement. The subject-matter of the data processing, the types of personal data processed, and the categories of data subjects will be defined by, and/or limited to that appropriate to carry out the AE Service, which may include aggregation of data for purposes of improving the AE Service. The processing will be carried out until the date MusicHype ceases to provide the AE Service to Customer. The subject matter, duration, nature, and purpose of the processing of the personal data as well as the type of personal data and categories of data subjects are:
a. The subject matter of the data processing under this DPA is the Customer Data
b. The duration of the processing equals the Term of the Agreement, unless otherwise requested by Customer in writing.
c. The nature and purposes of the processing under this DPA is the provision of the AE Service to Customer and the performance of MusicHype’s obligations under the Agreement (including this DPA).
d. The categories of the data subjects include any individual whose information is stored on or collected via the AE Service.
e. The categories of personal data include the categories of data disclosed at: http://get.theappreciationengine.com/support/privacy-policy/
3. Data Protection. In respect of personal data processed in the course of providing the AE Service, MusicHype shall adhere to the following requirements:
a. MusicHype will process the personal data only in accordance with the written instructions from Customer (the Agreement and this DPA are hereby deemed to be Customer’s sole written instructions) and only in compliance with Data Protection Legislation. The nature and purposes of the processing shall be limited that that necessary to carry out such instructions or for any other purposes except as required by law. If MusicHype is required by law to process the personal data for any other purpose, MusicHype will inform Customer of such requirement prior to the processing unless prohibited by law from doing so.
b. MusicHype will process the personal data only to the extent, and in such manner, as is necessary for the provision of the AE Service. MusicHype may only correct, delete or block the personal data processed on behalf of Customer as and when instructed to do so by Customer.
c. MusicHype will implement and maintain appropriate technical and organisational measures designed to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall take into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. The measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destructoni, damage or theft of the personal data and having regard to the nature of the personal data which is to be protected and as a minimum shall be in accordance with the Data Protection Legislation and Good Industry Practice.
d. MusicHype will not give access to or transfer any personal data to any third party (including any affiliates, group companies or sub-contractors) without the prior consent of Customer. Where Customer does consent to MusicHype engaging a sub-contractor to carry out any part of the AE Service, MusicHype must ensure the reliability and competence of such third party, its employees or agents who may have access to the personal data processed in the provision of the AE Service, and must include in any contract with such third party provisions in favor of Customer which are equivalent to those in this DPA and the Agreement and as are required by applicable Data Protection Legislation. For the avoidance of doubt, where a third party fails to fulfil its obligations under any sub-processing agreement or any applicable Data Protection Legislation, MusicHype will remain fully liable to Customer for the fulfilment of its obligations under this DPA and the Agreement. Customer hereby consents to the transfer of personal data to the sub-contractors listed here.
e. MusicHype will take reasonable steps to ensure the reliability and competence of any MusicHype personnel who have access to the personal data. MusicHype will ensure that all MusicHype personnel required to access the personal data are informed of the confidential nature of the personal data and comply with the obligations set out in this DPA.
f. MusicHype will take all reasonable steps to assist Customer in meeting Customer’s obligations under applicable Data Protection Legislation, including Customer’s obligations to respond to requests by data subjects to exercise their rights with respect to personal data, adhere to data security obligations, respond to data breaches and other incidents involving personal data, conduct data protection impact assessments, and consult with supervisory authorities. MusicHype will promptly inform Customer in writing if it receives: (i) a request from a data subject concerning any personal data; or (ii) a complaint, communication, or request relating to Customer’s obligations under Data Protection Legislation.
g. MusicHype will not retain any of the personal data for longer than is necessary to provide the AE Service. At the end of the AE Service, or upon Customer's request, MusicHype will securely destroy or return (at Customer’s election) the personal data to Customer.
h. With regard to personal data related to data subjects located in the European Economic Area, MusicHype will not process such personal data in a location outside the European Economic Area, except pursuant to its Privacy Shield certification.
i. MusicHype will allow Customer and its respective auditors or authorized agents to conduct audits and inspections during the term of the Agreement and for 12 months thereafter, which shall solely include, unless otherwise expressly required by applicable law, providing access to summaries of MusicHype’s data protection and data security measures and access to personnel used by MusicHype in connection with the provision of the AE Service for purposes of asking questions regarding MusicHype’s data protection and data security measures. The purposes of an audit pursuant to this paragraph include to verify that MusicHype is processing personal data in accordance with its obligations under this DPA, the Agreement, and applicable Data Protection Legislation.
j. If MusicHype becomes aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that is processed by MusicHype in the course of providing the AE Service under the Agreement (a "Security Breach"),
i. it shall promptly and without undue delay notify Customer and provide Customer with: a detailed description of the Security Breach; the type of data that was the subject of the Security Breach; the identity of each affected person, and the steps MusicHype takes in order to mitigate and remediate such Security Breach, in each case as promptly as such information can be collected or otherwise becomes available (as well as periodic updates to this information and any other information Customer may reasonably request relating to the Security Breach); and
j.i. take action promptly, at its own expense, to investigate the Security Breach and to identify, prevent and mitigate the effects of the Security Breach and to carry out appropriate recovery actions to remedy the Security Breach.
k. MusicHype shall comply at all times with, and assist Customer in complying with its applicable obligations under, Data Protection Legislation. MusicHype shall provide reasonable information requested by Customer to demonstrate compliance with the obligations set out in this DPA.
l. MusicHype will notify Customer immediately if, in MusicHype's opinion, an instruction for the processing of personal data given by Customer infringes applicable Data Protection Legislation.
m. In the event of any conflict between this DPA and the Agreement, this DPA shall prevail.
